ARIZONA PUBLIC SERVICE FRANCHISE AGREEMENT-MARK CONFIDENTIAL.PDF
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Page 1 NON-EXCLUSIVE FRANCHISE FOR ARIZONA PUBLIC SERVICE Section 1 – Grant of Franchise The County of Maricopa, Arizona (“County”) hereby grants to Arizona Public Service, a public service corporation organized under the laws of the State of California and duly authorized to conduct business in the State of Arizona (herein called "Grantee"), its successors and assigns, this public utility franchise (hereinafter “Franchise”) for the purpose of constructing, operating and maintaining Grantee’s gas system and gas system facilities and related appurtenances upon, along, across, over and under public streets, alleys, and highways, and other rights of way, except federal and state highways, under the terms and conditions set forth herein and as the Board of Supervisors may provide, not inconsistent with the laws of the State of Arizona, within the unincorporated areas of Maricopa County, Arizona. These public Rights-of-Way include, but are not limited to, present and future public streets, roads, alleys, ways, bridges, and highways, except federal and state highways within the unincorporated areas of Maricopa County (“Public Rights-of- Way”). Grantee’s gas system is for the purpose of supplying natural gas and/or artificial gas, including gas manufactured by any process whatsoever, and/or gas containing a mixture of natural gas and such artificial gas (herein all types of gas will be collectively referred to as “gas”) to County, its successors, the inhabitants thereof, and all individuals and entities either within or beyond the limits thereof, for all purposes. For the purposes of this franchise, gas may include but is not limited to compressed natural gas, biogas, renewable natural gas, and/or hydrogen and does not include gasoline products. Grantee’s gas system includes a transmission and distribution system of natural gas mains, pipelines and conduits, together with all necessary or desirable appurtenances including, but not limited to pipes, laterals, casings, sleeves, vents, service lines, pumps, manholes, meters, gauges, valves, traps, fences, vaults, regulators, regulator stations, appliances, attachments and related equipment, facilities, appurtenances and/or property for the purpose of supplying natural gas (individually, and collectively, “Grantee Facilities”). Grantee shall have the right to install, maintain, construct, operate, use, repair or replace any or all of its Gas System Facilities from time to time as may be necessary as stipulated by the terms of this Franchise and County ordinance. Section 2 – Term The Effective Date of this Franchise shall be __________. This Franchise shall continue and remain in full force and effect for a period of twenty-five (25) years from the Effective Date, unless terminated earlier by written agreement of the parties, or pursuant to Section 15 herein. Section 3 – County Rights 3.1 The rights of County in and to the use of public rights-of-way shall be forever paramount and superior to Grantee’s rights under the Franchise. 3.2 The County reserves the right to impose future restrictions and limitations upon the exercise of the rights granted herein as it deems best for public safety and welfare. Grantee is further required to comply with all lawful applicable ordinances of Maricopa County regulating conduct or work within the Public Rights-of-Way, as such ordinances are now enacted or may be amended or adopted from time to time. Section 4 – Construction Page 2 4.1 Grantee, its agents, employees, or contractors, shall perform all construction under this Franchise in accordance with established industry standards and in the manner prescribed by County and subject to the supervision of County, in strict compliance with all laws, ordinances, rules, and regulations of federal, state, and local governments. 4.2 Before beginning any construction for installation of Grantee’s Facilities, Grantee shall, as part of the right-of-way permit application process, submit a plan of proposed construction to the Maricopa County Engineer and shall not commence any construction until the plan of construction is approved by the County Engineer or her/his designee. 4.3 No construction, reconstruction, repair or relocation under this Franchise shall be commenced until written permits have been obtained from proper County officials. In any permit so issued, such officials may impose such conditions and regulations as a condition of the granting of the same as are necessary for the purpose of protecting any structures, highways, streets or rights of way and for the proper restoration of such structures, highways, streets or rights of way, for the protection of the public and the continuity of pedestrian and vehicular traffic. 4.4 On an annual basis, Grantee shall apply for and obtain the required maintenance and emergency permits from County. 4. 5 Notwithstanding 4.2, Grantee shall have the right to undertake without delay such emergency activities necessary to provide for and maintain the reliability and safety of its Facilities. If such action is required, Grantee shall advise County of the work performed to maintain its system and apply for a permit within 24 hours of commencing such emergency activities. 4.6 County shall, if it deems necessary, have the right to inspect Grantee’s permitted construction, repair, relocation, and operation and maintenance activities to ensure compliance with the terms of the Franchise granted herein. 4.7 Upon reasonable notice by County of the proposed paving of a Public Right-of-Way, Grantee shall review the County’s proposed paving plan and, if warranted in the Grantee’s judgment, extend or replace, at its sole cost, its Facilities in order to reasonably avoid the need to subsequently cut the paved Public Right-of-Way. Any action to extend or replace by Grantee, its agents, employees or contractors shall be performed in a manner and time not to interfere or delay County’s project. Any delay or interference caused solely and directly by the acts or omissions of Grantee or its contractors or agents that results in additional construction costs or fees to County’s project, shall be the liability of Grantee and shall be reimbursed by Grantee within 30 days of receipt of invoice from County. 4.8 Construction of Grantee's Facilities relating to traffic control, backfilling, compaction and paving, as well as the location or relocation of Grantee’s Facilities pursuant to this Franchise Agreement shall be subject to regulation by the applicable provisions included within required right-of-way permits, and any applicable County ordinances, and state statutes in place at the time of installation and permit closure. If a provision of an applicable County ordinance is inconsistent with Title 49 of the Code of Federal Regulations or any other applicable federal or Arizona state law, rule, order, or regulation, then Grantee and County agree that Title 49 of the Code of Federal Regulations or the other applicable federal, or Arizona state law, rule, order or regulation shall govern. Pursuant to A.R.S. § 40-360.30, and any other applicable law, Grantee shall maintain installation records of the location of all its Facilities in the Public Rights-of-Way. Grantee’s Facilities are defined as critical infrastructure by the federal government and as such, County agrees that records of the location or design of natural gas facilities are proprietary to Grantee and County shall not release nor make available any records to any outside party without the express, written permission of Grantee. Page 3 4.9 Grantee shall provide prior written notice or actual notice to the owners or residents of adjoining property of any activity of Grantee which may temporarily interfere with access to or use of said adjoining property in compliance with applicable County ordinance, regulation and permit conditions for Grantee’s work in the County’s Public Rights-of-Way. If an emergency precludes the provision of prior notice, Grantee shall use its commercially reasonable efforts to provide timely actual notice to the owners or residents of the adjoining property. 4.10 During construction or excavation in the Public Rights-of-Way, Grantee shall provide proper drainage as required by applicable County ordinance, regulation and permit conditions for Grantee’s work in the County’s so that the Public Rights-of-Way shall be free from standing surface water and properly and adequately drained so as not to cause flood or erosion damage to the facilities of the County or surrounding property. 4.11 If County undertakes, either directly or through a contractor, a construction project adjacent to Grantee's facilities operated pursuant to this Franchise, County, at County’s discretion, may notify Grantee of such construction project. If notified, Grantee must take steps Grantee determines to be reasonably necessary to maintain the safety of Grantee’s Facilities throughout the construction project. Any steps taken by Grantee under this subsection shall be at Grantee’s sole cost and shall not interfere with or delay County’s construction project or other authorized users of the area. County shall not be responsible for any accident or damages to Grantee’s Facilities that may result from County’s construction project, except for damages caused by County or its agents, employees or contractors, to the extent consistent with ARS 12-820.01 or 12-820.02. Section 5 – Restoration of Public Rights-of-Way, public place or other public facility 5.1 In the construction, maintenance, repair and operation of its Facilities, Grantee shall not alter, damage, disturb or destroy the direction, surface, subsurface, grade or alignment of Public Rights-of-Way adjoining public property, or public improvements located thereon, or public facility. If, in exercising any rights granted under this Franchise, Grantee, its agents, employees or contractors, does or permits to be done any damage, disturbance, alteration, modification or destruction as stated herein, Grantee, at its own expense, to the satisfaction of the County, shall promptly repair or restore the surface or subsurface of the public road or public property or repair or replace the public improvement as required by construction standards in effect at that time (or consistent with all County rules, regulations and ordinances then in effect.) Notwithstanding the foregoing, to the extent there are required repairs to County public improvements or facilities caused by Grantee’s operations under this Franchise, Grantee and Grantor shall mutually agree as to which party shall perform the repairs, with Grantee to be responsible for payment of the reasonable cost thereof. Grantee shall use all necessary care to avoid doing or permitting to be done any damage, disturbance, alteration or modification to the facilities of the County. The restoration shall be initiated promptly and completed expeditiously in recognition of the duty of Grantee to give the restoration, repair or replacement of Public Rights-of-Way or county facilities priority over proceeding with non- emergency activities of Grantee. Nothing in this Franchise shall be construed as constituting a contractual obligation on the part of Grantee that assumes jurisdiction over, or an obligation to maintain, within any County Right-of-Way such public road, public property or public improvement thereon. 5.2 Grantee shall use all necessary care to avoid any damage to, or disturbance of, the landscaping or vegetation in the Public Rights-of-Way. If Grantee shall do or permit to be done, any such damage or disturbance, Grantee, at its sole expense, shall restore such landscaping or vegetation within the rights-of- Page 4 way to the condition, or as close to such condition, as existed prior to the damage or disturbance. 5.3 Grantee shall bear all expenses, including damage and compensation for any alteration of the direction, surface, grade or alignment of Public Rights-of-Way, made for the purpose of this Franchise. 5.4 County shall not and does not by reason of the Franchise assume any liability of the Grantee whatsoever for injury to persons or damage to property; provided that County remains liable for any injury or damage, if any, arising from the negligent acts, omissions or willful misconduct of County or its agents, employees or contractors. Section 6 — Fees Grantee shall pay all applicable Permit and Inspection fees for construction performed by Grantee under this Franchise, and any other applicable fees in effect at the time of the granting of this Franchise, or as subsequently adopted by the Maricopa County Board of Supervisors. Section 7 – Relocation of Facilities 7.1 The County reserves its prior right to use the Public Rights-of-Way and County property, including the surface areas, for all County governmental function projects. Grantee shall, upon written request by the County, relocate, without expense to the County, any of Grantee’s Facilities that are in direct physical conflict with any County governmental function project, including any County Transportation (TIP), Maintenance (MIP), and Safety projects, to such location as the County and Grantee agree. Grantee, at its own expense, shall be required as a matter of public safety and/or welfare, promptly make such changes in the location, structure or alignment of its Facilities, lines and related appurtenances as the County Engineer or the County Engineer’s designee may deem necessary. 7.2 If County requires Grantee to relocate Grantee's Facilities that are located in a private easement then the costs and expenditures associated with purchasing a new private easement and relocating Grantee's Facilities shall be paid by County. 7.3 Within one hundred and twenty (120) days (or a longer period if agreed to by County) after receiving written notice from County of needed changes or corrections in Grantee’s Facilities and upon the failure of Grantee to make such changes or corrections as set forth herein, or to correct any damage to any public street, alley, highway or right-of-way within the Franchise Area caused directly or indirectly by Grantee, its agents, employees or contractors, County shall have the right to make, or cause such changes or corrections to be made at the expense of Grantee. In the event that any changes, corrections or repairs are deemed an emergency by County, Grantee, upon receipt of notice of such an emergency, shall make such changes, corrections or repairs deemed necessary by County to provide for health and safety concerns. In the event that Grantee does not make the necessary changes, corrections or repairs within a reasonable period of time, County may make or cause such changes, corrections or repairs to be made at the expense of Grantee. Any expenses incurred for such changes, corrections or repairs shall be due and payable within thirty days of written demand by County to Grantee. 7.4 County will not exercise its right to require Grantee’s Facilities to be relocated in an unreasonable or arbitrary manner, or to avoid its obligations under this Franchise. 7.5 All underground abandoned lines shall continue to remain the property of the Grantee, unless the Grantee specifically acknowledges otherwise to the County Engineer and such is accepted by the County. Grantee shall remove, at Grantee's sole cost, abandoned lines at the request of County when Grantee’s Page 5 Facilities are in direct, physical conflict with County facilities that will be installed as part of a County project. 7.5.1 Prior to removal of any abandoned lines, Grantee must notify County of its intent to remove abandoned lines and offer possession of said lines to County. 7.5.2 Grantee must identify the location of any known abandoned lines as they exist through Blue Staking. 7.6 Nothing in the Franchise shall be construed to prevent County from abandoning, altering, improving, repairing or maintaining facilities of County or Public Rights-of-Way and, for that purpose, requiring Grantee at its own expense to remove, relocate or abandon in place, Grantee’s Facilities to accommodate the activities of County when such Facilities are in direct physical conflict with proposed County construction projects. Upon reasonable notice from the County Engineer, Grantee shall consult with the County Engineer regarding the necessity and extent of any proposed relocation of Grantee’s Facilities located in the public Rights-of-Way of Maricopa County. 7.7 County shall not be liable to Grantee for any costs of relocation, replacement, repair or abandonment of Grantee’s Facilities in public Rights-of-Way or lost revenues, sustained by Grantee because of damage, modification or alteration to or destruction of its facilities in the public Rights-or-Way, except as otherwise provided herein, and to the extent consistent with ARS 12-820.01 and 12-820.02. Section 8 – Indemnification County shall not be liable or responsible for any accident or damage resulting from or arising out of the exercise of any rights granted under this Franchise which are attributed to any act or omission of Grantee, its agents, employees, or anyone acting under its direction, control or on its behalf. The acceptance of this Franchise shall be deemed an agreement on the part of Grantee to indemnify, defend and hold harmless Maricopa County, its officers, departments, employees and agents (“Indemnified Parties”) from and against any and all liability, loss, costs, damages, suits, actions, legal or administrative proceedings, claims, demands or any other expenses or damages of any kind or nature, which may be imposed on the County by reason of the negligence, default or misconduct of Grantee in the exercise of this Franchise. In no event shall Grantee be required to indemnify, defend or hold harmless the Indemnified Parties for such claims, expenses and/or losses that are the result of the sole negligence of any of the Indemnified Parties or that of third parties not under Grantee’s direction or control and without fault of Grantee and, in all events, Grantee’s liability shall only be to the extent at fault. Section 9 – Assignment Grantee shall not assign or transfer any interest without the prior written consent of Grantor. Grantor shall not unreasonably withhold its consent to a proposed transfer. Section 10 – Franchise; Non-Exclusive; Use 10.1 This Franchise is non-exclusive, and nothing contained herein shall be construed to prevent County from granting similar rights or privileges to any other authorized entity, or exercising any regulatory power which it now has or which may hereafter be authorized or permitted by the laws of the State of Arizona. County retains and shall ever be considered as having and retaining the right and power to allow and to grant to any other person, firm, corporation or other companies, franchise rights and privileges to be exercised in and upon its public streets, alleys, highways, Rights-of-Way and public places and such of the same and parts thereof as County may deem best or choose to allow, permit, give or Page 6 grant so long as such franchise rights and privileges shall not interfere with Grantee’s use of the Grantee’s Facilities. 10.2 Nothing herein shall be construed to prevent County and its proper authorities from constructing and installing water lines, sewers, gutters or improvements to its public highways, streets and alleys. 10.3 All rights hereby granted shall be exercised so as not to interfere or conflict with any easements, either public or private, within the Public Rights-of-Way heretofore granted by the Board of Supervisors and now in force. 10.4 All rights hereby granted shall be exercised so as not to unreasonably interfere or conflict with or endanger in any way the proper use by the public of said Public Rights-of-Way, or any portion thereof. Section 11 – Failure to Enforce Franchise Grantee shall not be excused from complying with any of the terms and conditions of the Franchise by any failure of County, upon any one or more occasions, to insist upon the Grantee’s performance or to seek Grantee’s compliance with any one or more of such terms or conditions. Section 12 – Notices Any notice required or permitted to be given hereunder shall be in writing, unless otherwise expressly permitted or required, and shall be deemed effective either (i) upon hand delivery to the person then holding the office shown on the attention line of the address below, or if such office is vacant or no longer exists, to a person holding a comparable office, or (ii) on the third business day following its deposit with the United States Postal Service, first class and certified or registered mail, return receipt requested, postage prepaid, addressed as follows: To the County: MCDOT ATTN: Utilities Branch Manager 2901 W. Durango St. Phoenix, AZ 85009 To Arizona Public Service: Clayton Allsop Arizona Public Service P.O. Box 53933 Phoenix, Arizona 85072-3933 Section 13 – Public Notice This Franchise is subject to the provisions of A.R.S. § 40-283, and shall be void upon the petitioning of the Board of Supervisors on or prior to the grant of Franchise, by more than fifty percent of the qualified electors of the County, to deny the Franchise. Section 14 – Severability If any section, paragraph, clause, phrase, term or covenant or any portion of any section, paragraph, clause, phrase, term or covenant of this Franchise is determined illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory agency having jurisdiction thereof, Page 7 such determination shall have no effect on the remaining portion of such section, paragraph, clause, phrase, term or covenant or the remaining sections, paragraphs, clauses, phrases, terms or covenants of the Franchise or the validity of this Franchise as a whole, all of which shall remain in full force and effect for the term of the Franchise. Section 15 – Forfeiture 15.1 If Grantee fails to comply with any of the provisions of this Franchise or defaults in any of its obligations hereunder, except for causes beyond the reasonable control of Grantee; and shall fail within sixty (60) days after written notice from County to commence, and within a reasonable time and not longer than one hundred and twenty (120) days, complete the correction of such default or noncompliance, County shall have the right to revoke this Franchise and all rights of Grantee hereunder. In the event Grantee makes a general assignment or general arrangement for the benefit of creditors; or a trustee or receiver is appointed to take possession of substantially all of Grantee’s Facilities within the Franchise Area or of Grantee’s interest in this Franchise, where possession is not restored to Grantee within thirty (30) days; or substantially all of Grantee’s Facilities within the Franchise Area are subject to an attachment, execution or other seizure, where such seizure is not discharged within thirty (30) days, County may declare this Franchise, and any expansion hereto, forfeited and terminated. No such revocation or forfeiture shall occur without affording Grantee at least sixty (60) days prior written notice and a hearing before the Board of Supervisors. 15.2 Nothing herein contained shall limit or restrict any other legal rights that County may possess arising from such violations. 15.3 Upon termination, revocation or forfeiture of this Franchise, Grantee forfeits all rights granted herein. Within ninety days after the date of termination, revocation or forfeiture, Grantee shall apply for and obtain a Right-of-Way permit from Maricopa County to continue operation of Grantee’s Facilities. Section 16 – Books and Records Grantee shall maintain books and records that identify all of Grantee’s Facilities by type and location within the Franchise Area and shall make such books available to County upon County’s request, without cost to the County. [END OF CONTRACT – Signature Page Follows} This Franchise has been executed on behalf of the County this ___________ day of _______________________________, 20_____. Approved and Accepted by: Page 8 _________________________________________ Jack Sellers, Chairman Maricopa County Board of Supervisors Attest by: ________________________________________ Clerk of the Board of Supervisors Approval As To Form: ____________________________________ Deputy County Attorney Date ACCEPTED BY: ARIZONA PUBLIC SERVICE By: _______________________________________________ Name: _____________________________________________ Title: ______________________________________________ WITNESS: By: _____________________________ Name: _____________________________ Title: _____________________________ EXHIBIT A